QUENTIN KOPP et al., Petitioners; COMMON CAUSE, Intervener, v. FAIR POLITICAL PRACTICES COMMISSION, Respondent; CALIFORNIA LEGISLATURE et al., Interveners, 11 Cal. 4th 607

Opinion LUCAS, C. J. I. Introduction and

Summary In 1988 the voters enacted Proposition 73, which was designed to reform financing of statewide and local political campaigns. (See Gov. Code, §§ 82041.5, 85100-85400, 89001.) Five provisions of that measure are at issue in this litigation:

Section 85301, subdivision (a) (hereafter

section 85301(a)) limits to $1,000 per fiscal year, contributions by a “person” to a candidate or to committees controlled by the candidate.

Section 85302 limits to $2,500 per fiscal year, contributions by a “person” to a “political committee, broad based political committee, or political party.”

Section 85303, subdivision (a) (hereafter

section 85303(a)) limits to $2,500 per fiscal year, contributions by a “political committee” to a “candidate or any committee controlled by that candidate.” Subdivision (b) (hereafter

section 85303(b)) of the same

section limits to $5,000 per fiscal year, contributions by a “broad based political committee or political party” to a “candidate or any committee controlled by that candidate.” Finally,

section 85304 bans transfer of contributions between a candidate’s own committees and between candidates. In 1990, in a suit in which petitioners in the present litigation were allowed to intervene on behalf of the defendant (respondent herein Fair Political Practices Commission), the federal district court held the “fiscal year” measure of sections 85301-85303 unconstitutional, and enjoined enforcement of those sections and

section 85304. (Service Employees v. Fair Political Practices (E.D.Cal. 1990) 747 F.Supp. 580 (Service Employees I).) The United States Court of Appeals for the Ninth Circuit affirmed the judgment of the district court (Service Emp. Intern, v. Fair Political Prac. Com’n (9th Cir. 1992) 955 F.2d 1312 (Service Employees II)), and the high court denied certiorari review. (505 U.S. 1230 [120 L.Ed.2d 922, 112 S.Ct. 3056, 3057].) In this original proceeding (see Cal. Const., art. VI, § 10; Cal.

Rules of Court, rule 56(a)) brought by petitioners State Senator Quentin Kopp and Assemblyman Ross Johnson, cosponsors of Proposition 73, we issued an alternative writ of mandate to respondent Fair Political Practices Commission directing it to show cause why a peremptory writ of mandate should not issue ordering respondent to enforce sections 85301-85304. Respondent filed an answer taking a neutral position on the issue. We granted the motions of Common Cause to intervene on behalf of petitioners, and of the California Legislature and four legislators to intervene on behalf of respondent.

In addition we accepted amicus curiae briefs from other interested entities and legislators. The issue is one of state law: assuming enforcement of the challenged sections as enacted would violate the federal Constitution, may, and if so, should, the statutes be judicially reformed in a manner that avoids the fiscal year measure? As explained below, we reject claims by interveners on behalf of respondent that the doctrine of res judicata or considerations of comity bar consideration of the issue raised.

Nor does the federal appeals court’s judgment affirming the federal district court’s injunction against enforcement of sections 85301-85304 render those sections incapable of reformation by this court in this litigation. We also reject the view that a court lacks authority to rewrite a statute in order to preserve its constitutionality or that the separation of powers doctrine, which vests legislative power in the Legislature and judicial power in the courts (Cal. Const., art. IV, § 1; id., art. VI, § 1), invariably precludes such judicial rewriting.

Under established decisions of this court and the United States Supreme Court, a reviewing court may, in appropriate circumstances, and consistently with the separation of powers doctrine, reform a statute to conform it to constitutional requirements in lieu of simply declaring it unconstitutional and unenforceable, The guiding principle is consistency with the Legislature’s (or, as here, the electorate’

s) intent: a court may reform a statute to satisfy constitutional requirements if it can conclude with confidence that (

i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred such a reformed version of the statute to invalidation of the statute. We conclude, however, that we should not reform

section 85304 and, under this test, we may not reform sections 85301(a), 85302, or 85303(

a) and (b). We will not reform the “inter-candidate” aspect of

section 85304’s transfer ban because the federal appeals court found that

section unconstitutional on First Amendment and overbreadth grounds unrelated to reformation of the fiscal year measures of sections 85301(

a) and 85303(

a) and (b), and hence its order in this regard will not be implicated by our judgment herein, whether or not we reform the latter two sections. Nor will we reform

section 85301(

a) or

section 85303(

a) and (b)—each of which regulates contributions to individual candidates—because, as illustrated by the starkly divergent positions of petitioners and intervener on their behalf, on one hand, and the justices joining Justice Baxter’s concurring and dissenting opinion, on the other hand, the statutes cannot be reformed in a fashion that closely effectuates policy judgments clearly articulated by the electorate.

Specifically, because the “per election” approach advocated by petitioners and Common Cause would allow candidates less funding than the electorate contemplated, and because the so-called “modified election cycle” reformation advocated by Justice Baxter’s concurring and dissenting opinion would allow candidates more funds than the electorate planned (and would remove any regulation of the pace of contributions for nonpartisan offices), neither reformation would closely effectuate policy judgments clearly expressed by the electorate, and hence neither reformation is permissible.

Finally, for related reasons, we will not reform

section 85302, which regulates contributions to political committees or parties. II. Background: Litigation Concerning Proposition 73 In Service Employees I, supra, 747 F.Supp. 580, the federal district court considered challenges to, inter alia, four sections of Proposition 73. First, the plaintiffs challenged the measure’s three “contribution limitations” provisions: Sections 85301(

a) and 85303(

a) and (b), which, as noted above, regulate the maximum dollar amount of contributions to candidates “in any fiscal year,” and

section 85302, which, as noted above, regulates the maximum dollar amount of contributions to political committees or parties “in any fiscal year.” In addition, the plaintiffs challenged the measure’s ban on transfer of contributions between a candidate’s own committees (the “intracandidate transfer ban”) and between candidates (the “inter-candidate transfer ban”) (§ 85304). The federal district court found the fiscal year provisions of the three contribution limitation sections (§§ 85301-85303) unconstitutional because they would have the effect of discriminating in favor of incumbents.

Relying on expert testimony presented at trial, the court noted that incumbents typically begin to solicit campaign contributions during each of the years of incumbency, but that challengers generally do not (and, as a practical matter, cannot) do so, because unlike incumbents, they typically do not decide to run for office years in advance of an election. (747 F.Supp. at p. 588.) As a result, the district court found, a “fiscal year” measure for contribution limitations would tend to favor incumbents over challengers, and it concluded this disparate treatment violated the First and Fourteenth Amendments to the federal Constitution. (Id. at p. 590.) Having reached this conclusion, the court found it unnecessary to address additional challenges to those statutes raised by the plaintiffs. (Ibid.) After resolving this federal constitutional issue the court turned to an issue of state law, i.e., whether the constitutionally invalid “fiscal year” provision of the contribution limitation sections (§§ 85301-85303) might be severed from those sections. (747 F.Supp. at p. 590.) The court noted that Proposition 73 contained a severance clause, and it cited our decision in Calfarm Ins.

Co. v. Deukmejian (1989) 48 Cal.3d 805, 821-822 [258 Cal.Rptr. 161, 771 P.2d 1247] (see 747 F.Supp. at p. 590, fn. 22), in which we expressly recognized that the presence of such a clause “ ‘normally calls for sustaining the valid part of the enactment . . . ” (Calfarm, supra, 48 Cal.3d at p. 821.) The federal district court summarily concluded, however, that the fiscal year provisions could not be severed from the contribution limitations themselves, and it did not consider whether the provisions might, under state law, be judicially reformed to avoid the unconstitutional fiscal year measure.

Accordingly, the court found sections 85301 through 85303 violate the federal Constitution. (747 F.Supp. at p. 590.) Next, the federal district court addressed 85304’s transfer bans. It found the intra-candidate transfer ban to be an unconstitutional spending limitation, and permanently enjoined its enforcement. (See Service Employees I, supra, 747 F.Supp. 580, 591-594; see generally, Buckley v. Valeo (1976) 424 U.S. 1, 54-59 [46 L.Ed.2d 659, 707-710, 96 S.Ct. 612] [spending, as opposed to contribution limitations, are constitutionally permissible only if the candidate agrees to be bound by them].) This aspect of

section 85304 is not at issue in this proceeding. Finally, the court addressed the plaintiffs’ challenge to

section 85304’s ban on inter-candidate transfers of contributions, i.e., “transfers of funds between candidates.” The district court held this aspect of

section 85304 unconstitutional on the ground that no legitimate governmental interest justified the burden on the right of a candidate to contribute to another candidate.

The court noted that the defendants “maintain that the transfer ban is simply a device to prevent those who desire to avoid the contribution limits from doing so by the simple expedient of using another candidate as a conduit for the contribution” (747 F.Supp. at p. 593), but reasoned that because the contribution limits were themselves constitutionally invalid, the inter-candidate transfer ban, “to the extent it is premised on the need to prevent subversion of the fiscal year limitations, must also fail.” (Ibid., fn. omitted.) The court thus permanently enjoined enforcement of the contribution limitation provisions (§§85301-85303) and the transfer ban provision (§ 80304). (Service Employees I, supra, 747 F.Supp. at p. 593.) A month after the federal district court’s decision in Service Employees I, supra, we held that Proposition 73 prevailed over Proposition 68, an alternative campaign reform measure that had garnered a lesser majority vote at the 1988 Primary Election. (Taxpayers to Limit Campaign Spending v.

Fair Pol.

Practices Com. (1990) 51 Cal.3d 744 [274 Cal.Rptr. 787, 799 P.2d 1220].) Thereafter, the United States Court of Appeals for the Ninth Circuit affirmed the judgment of the district court in Service Employees I, supra, (Service Employees II, supra, 955 F.2d 1312.) The federal appeals court agreed that the fiscal year measure employed in sections 85301 through 85303 would have the effect of discriminating in favor of incumbents, and it found a violation of the First Amendment because the state failed to show that “the discrimination itself is necessary to serve a substantial governmental interest.” (Service Employees II, supra, 955 F.2d at p. 1320.) The federal appeals court also concluded that the “fiscal year feature” of sections 85301-85303 rendered them constitutionally infirm and not salvageable by severance or reformation.

The court reasoned: “[Plaintiffs] have given us no reason to believe that ‘the legislation [i.e., sections 85301-85303] would have been enacted if it had not included the unconstitutional provision[].’ National Advertising Co. v. Town of Babylon, 900 F.2d 551, 557 (2d Cir. [1990]) (citing United States v. Jackson, 390 U.S. 570, 585 n. 27, 88 S.Ct. 1209, 1218 n. 27, 20 L.Ed.2d 138 (1968)), cert, denied, 498 U.S. 852 111 S.Ct. 146, 112 L.Ed.2d 112 (1990).

As the district court pointed out, were we simply to strike the word ‘fiscal’ from the statute, contribution limits would still be measured on an annual basis, raising the same problems of discrimination. 747 F.Supp. at 590. Were we to rewrite the statute to limit contributions on an election cycle basis, we would be at a loss to know what the dollar amounts of the limitations should be. In short, to save the statute, we would have to rewrite it substantially, ‘a practice that is decidedly disfavored.’ [900 F.2d at p. 557] (citing Thornburgh v.

American College of Obstetricians & Gynecologists, 476 U.S. 747, 764-765, 106 S.Ct. 2169, 2180-81, 90 L.Ed.2d 779 (1986)).” (Service Employees II, supra, 955 F.2d at p. 1321.) The federal appeals court then addressed

section 85304’s two transfer bans. It affirmed the federal district court’s invalidation of the intra-candidate transfer ban, and, as noted above, that aspect of

section 85304 is not implicated by the present litigation. Finally, the federal appeals court affirmed the district court’s permanent injunction against enforcement of

section 85304’s inter-candidate transfer ban.

It first acknowledged the defendants’ claim that the ban was necessary in order to prevent circumvention of the contribution regulations, but concluded, as had the district court, that the ban “cannot serve this purpose in the absence of valid contribution limits.” (955 F.2d at p. 1322.) It then addressed and rejected the defendants’ alternative justification for the ban, namely that it served “the state’s interest in preventing corruption or the appearance of corruption by ‘political power brokers.’ ” (Id. at p. 1323.) The court held: “Even if we assume this to be an important state interest, the ban is not ‘closely drawn to avoid unnecessary abridgment of associational freedoms.’ Buckley [v.

Valeo, supra, 424 U.S. 1,] 25 [46 L.Ed.2d 659, 691]. The potential for corruption stems not from campaign contributions per se but from large campaign contributions. Id. at 28 [46 L.Ed.2d at p. 693], The inter-candidate transfer ban prohibits small contributions from one candidate to another as well as large contributions. We hold, therefore, that the inter-candidate transfer ban is unconstitutional because it fails the ‘rigorous’ test used in Buckley, 424 U.S. at 29 [46 L.Ed.2d at pp. 693-694].” (Service Employees II, supra, 955 F.2d at p. 1323.) We subsequently held in Gerken v.

Fair Political Practices Com. (1993) 6. Cal.4th 707 [25 Cal.Rptr.2d 449, 863 P.2d 694] (Gerken), that Proposition 73 was not “invalidated” by the federal litigation in Service Employees II, supra, and thus declined to revive Proposition 68, which, we explained, remained “inoperative.” (6 Cal.4th at pp. 719, 720.) Our three opinions in Gerken, supra, 6 Cal.4th 707 (see id. at pp. 712, fn. 6 (lead opn. by Lucas, C.

J.); id. at p. 721 (conc. opn. of Baxter, J.); and id. at p. 736, fn. 3 (dis. opn. of Arabian, J.)) observed that the assumption underlying some of the reasoning of the federal appeals court—i.e., that the contribution limitation sections could not properly be judicially reformed to conform with constitutional principles—was in fact an untested question of state, and not federal, law.

As we recognized long ago, construction of a state statute is purely a matter of state law, and an erroneous construction by a federal court does not preclude a state court from later rejecting the federal court’s conclusion. (See, e.g., City of Oakland v. Buteau (1919) 180 Cal. 83, 89 [179 P. 170]; Bank of Italy etc. Assn. v. Bentley (1933) 217 Cal. 644, 653 [20 P.2d 940].) Nevertheless, interveners for respondent assert we are precluded from even considering whether to reform the statutes at issue in this writ proceeding. Before proceeding to the reformation question, we address these preclusion issues. III.

Whether We May Consider the Issues Raised in This Writ Petition A. Res judicata!collateral estoppel “The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.” (Bernhard v.

Bank of America (1942) 19 Cal.2d 807, 810 [122 P.2d 892].) Interveners on behalf of respondent correctly note that the federal district and appellate courts are “courts of competent jurisdiction.” They reason therefrom that the final judgment of the federal appeals court against petitioners, who appeared in the Service Employees litigation as interveners on behalf of the defendant, precludes this court from considering whether the unconstitutional aspects of sections 85301 through 85304 may be reformed under state law. As explained below, we disagree.

State courts “are the principal expositors of state law.” (Moore v. Sims (1979) 442 U.S. 415, 429 [60 L.Ed.2d 994, 1007, 99 S.Ct. 2371].) Whether a state statute may be reformed or construed in a manner that preserves its constitutionality is a question of state, and not federal, law. Indeed, as the high court has often observed, federal courts “lack jurisdiction authoritatively to construe state legislation” (United States v.

Thirty-Seven Photographs (1971) 402 U.S. 363, 369 [28 L.Ed.2d 822, 830, 91 S.Ct. 1400] (Thirty-Seven Photographs)), and for that reason, federal courts are reluctant to reform or “rewrite” state statutes to preserve constitutionally even when the court would otherwise reform or rewrite the statute if enacted by Congress. (Ibid.; see discussion, post, at pp. 629-631; see also Dombrowski v.

Pfister (1965) 380 U.S. 479, 491-492 [14 L.Ed.2d 22, 31-32, 85 S.Ct. 1116] [state court may reform state statute previously invalidated by federal court on federal constitutional grounds].) Nevertheless, as the United States Court of Appeals for the Sixth Circuit recently observed when confronted with a state law reformation question, the role of a federal court is to divine, as best it can, how the state court of last resort would rule on the question of statutory reformation. (Eubanks v.

Wilkinson (6th Cir. 1991) 937 F.2d 1118, 1122.) (We note that in most jurisdictions, federal courts are considerably assisted in this task by the ability to certify such a question to the state’s highest court. California, however, is one of the few states in the country— and the only one in the Ninth Circuit—that has no procedure for federal courts to certify questions of state law to the state’s highest court.) Petitioners and intervener on their behalf suggest that because a federal court lacks authority authoritatively to construe or reform a state law (Moore v.

Sims, supra, 442 U.S. 415, 428-430 [60 L.Ed.2d 994, 1006-1008]; Thirty-Seven Photographs, supra, 402 U.S. 363, 369 [28 L.Ed.2d 822, 829-830]), principles of res judicata or collateral estoppel can never bar a state court from entertaining the same cause of action that has been resolved by a federal decision which, in turn, rested on the federal court’s determination that it should not construe or reform a state statute to preserve its constitutionality. We decline to so hold.

Instead, we conclude that assuming principles of res judicata or collateral estoppel would otherwise apply, we should entertain and resolve the present litigation under the “public interest” exception to those doctrines. In City of Sacramento v. State of California (1990) 50 Cal.3d 51 [266 Cal.Rptr. 139, 785 P.2d 522], we allowed the state to relitigate the issue of whether extension of the state’s unemployment insurance law to include state and local governments constituted a reimbursable state mandate.

We noted that the state was the losing party in the earlier litigation and that it was the only entity legally affected by the earlier judgment. “Thus, strict application of collateral estoppel would foreclose any reexamination of the holding of that case.

The state would remain bound, and no other person would have occasion to challenge the precedent.” (Id. at p. 64.) We observed, however, that “ ‘when the issue is a question of law rather than of fact, the prior determination is not conclusive either if injustice would result or if the public interest requires that relitigation not be foreclosed. [Citations.]’ ” (Ibid., italics added; see also Greenfield v.

Mather (1948) 32 Cal.2d 23, 35 [194 P.2d 1] [recognizing public interest exception to res judicata].) Applying that rule to the facts before us, we concluded: “Yet the consequences of any error transcend those which would apply to mere private parties. If the result of [the earlier litigation] is wrong but unimpeachable, taxpayers statewide will suffer unjustly the consequences of the state’s continuing obligation to fund [the state mandate].

On the other hand, if the state fails to appropriate the funds to meet this obligation, and [the law extending unemployment insurance requirements to local governments] cannot be enforced [citations], the resulting failure to comply with federal law could cost California employers millions.” (City of Sacramento v. State of California, supra, 50 Cal.3d at pp. 64-65, fn. omitted; accord, Arcadia Unified School Dist. v.

State Dept, of Education (1992) 2 Cal.4th 251, 256-259 [5 Cal.Rptr.2d 545, 825 P.2d 438] [public interest exception applied to allow relitigation of whether school districts may charge for school transportation].) By the same reasoning, we conclude this is a matter in which the public interest requires that relitigation not be foreclosed, and hence reject the claim that the doctrines of res judicata or collateral estoppel bar consideration of the state law issue in this litigation. B.

Reformation of “constitutionally invalid” statutory provisions In a related argument, interveners for respondent assert that when the federal courts declared sections 85301-85304 unconstitutional, those statutes ceased to exist, and hence cannot be judicially reformed because there is nothing left to reform. They cite authority for the proposition that an invalidated statute “is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” (Norton v.

Shelby County (1886) 118 U.S. 425, 442 [30 L.Ed. 178, 186, 6 S.Ct. 1121] (Norton)-, accord, Reclamation District v. Superior Court (1916) 171 Cal. 672, 676 [154 P. 845] (Reclamation District).) They concede “numerous exceptions to that principle”—including the rule that “the text of an unconstitutional statute can be rendered legally operative by amending it to repair the constitutional defect” (1 Sutherland, Statutory Construction (5th ed. 1994) Limitations on Legislative Power, § 2.07, p. 38, fn. omitted; see County of Los Angeles v.

Jones (1936) 6 Cal.2d 695, 708 [59 P.2d 489]), but assert the latter rule is inapplicable here, because petitioners propose repair by judicial reformation, rather than legislative amendment. As petitioners observe, more recent decisions have approached the problem differently from Norton, supra, 118 U.S. 425, and Reclamation District, supra, 171 Cal. 672. “They proceed on the principle that a statute declared unconstitutional is void in the sense that it is inoperative or unenforceable, but not void in the sense that it is repealed or abolished . . . .” (Jawish v.

Morlet (App.D.C. 1952) 86 A.2d 96, 97, and cases cited [when decision declaring statute unconstitutional is subsequently overruled, statute is restored by overruling decision without necessity of reenactment]; Ballew v. State (1974) 292 Ala. 460 [296 So.2d 206] [construing state statute in manner rendering it enforceable despite federal court’s earlier decision holding same statute unconstitutional, void, and subject to injunction].) In this regard, we find Dombrowski v. Pfister, supra, 380 U.S. 479, persuasive.

In that case the high court enjoined enforcement of an unconstitutionally overbroad state statute, but specifically acknowledged the state’s authority thereafter to seek and obtain, in state court, a judicial “narrowing” reformation of the invalidated statute. (Id. at pp. 491 & 492 [14 L.Ed.2d at pp. 31 & 32.) In any event, we note that neither decision of the federal courts in the Service Employees litigation purported to “invalidate” the statutes at issue here, as interveners on behalf of respondent use that term.

The federal district court concluded that “because [sections 85301-85303] are measured by a fiscal year, they violate the Constitution of the United States and are unenforceable.” (Service Employees I, supra, 747 F.Supp. at p. 590, italics added.) In turn, the federal appeals court simply agreed with “the district court’s decision that all of Proposition 73’s contribution limits that are measured on a fiscal year basis are constitutionally infirm” (Service Employees II, supra, 955 F.2d at p. 1321), and affirmed the district court’s judgment. (Id. at p. 1323.) We therefore reject interveners’ premise; the federal appeals court did not “invalidate” sections 85301-85304; instead, it enjoined enforcement of those sections as written.

To the extent interveners on behalf of respondent suggest a statute that has been labeled “constitutionally invalid” is to be treated “as though it had never been passed,” and hence as not susceptible to judicial reformation, Dombrowski v. Pfister, supra, 380 U.S. 479, and our own cases reject that view. Indeed, the leading authority on the general subject of unconstitutional enactments, cited by both petitioners and interveners for respondent, describes with approval one of our cases (Quong Ham Wah Co. v. Industrial Acc.

Com. (1920) 184 Cal. 26 [192 P. 1021, 12 A.L.R. 1190]), in which, it notes, we judicially reformed a workers’ compensation statute by extending benefits to the class expressly excluded by statute (id. at p. 39 et seq.), after first finding the statute violated the federal Constitution (184 Cal. at pp. 36-38). (Field, The Effect of an Unconstitutional Statute (1935, reprint ed. 1971), p. 274.) We have recently reaffirmed that same judicial authority to reform constitutionally “invalid” statutes. In Del Monte v.

Wilson (1992) 1 Cal.4th 1009 [4 Cal.Rptr.2d 826, 824 P.2d 632], we held two veterans’ benefits statutes ‘‘‘'invalid as violative of the equal protection clause of the Fourteenth Amendment of the United States Constitution.” (Id. at p. 1026, italics added.) Nevertheless, we went on to judicially reform both statutes by extending the statutory benefits to those expressly excluded by the statutes. (Ibid.; see post, at p. 650.) Numerous other decisions have long recognized the propriety of such judicial action. (See, e.g., In re Edgar M. (1975) 14 Cal.3d 727, 736, 737 [122 Cal.Rptr. 574, 537 P.2d 406] [holding statute as enacted unconstitutional, and then reforming to preserve constitutionality]; see also Davis v.

Michigan Dept, of Treasury (1989) 489 U.S. 803, 817-818 [103 L.Ed.2d 891, 906-907, 109 S.Ct. 1500] [holding state benefits statute unconstitutional as enacted, and remanding to state court to elect between reformation and invalidation]; Wengler v. Druggists Mutual Ins. Co. (1980) 446 U.S. 142, 152-153 [64 L.Ed.2d 107, 116-117, 100 S.Ct. 1540] [same]; Orr v. Orr (1979) 440 U.S. 268, 283-284 [59 L.Ed.2d 306, 321-322, 99 S.Ct. 1102] [same]; Stanton v.

Stanton (1975) 421 U.S. 7, 17-18 [43 L.Ed.2d 688, 696-697, 95 S.Ct. 1373] [same].) In view of this authority, we reject the position of interveners for respondent, that sections 85301 through 85304 were rendered legally nonexistent (and hence not susceptible to judicial reformation) by the federal appeals court’s judgment affirming the district court’s order enjoining enforcement of those sections. C.

Summary We summarize our disposition of interveners’ objections to consideration of the state law reformation issue in this writ proceeding as follows: when faced with a question of whether to reform a state statute, the function of a federal court is to divine, to the best of its ability, how the state’s highest court would resolve that state law issue. (Eubanks v. Wilkinson, supra, 937 F.2d 1118, 1122.) As noted above, neither federal court in the Service Employees litigation did so, and instead both relied solely on federal law in concluding the statutes should not be reformed.

Contrary to suggestions of interveners on behalf of respondent, we conclude that a state supreme court is not constrained by principles of res judicata, collateral estoppel, or comity, to keep silent on a state law statutory reformation issue, when the question is presented to it in litigation such as this. Nor does the federal appeals court’s judgment affirming the injunction against enforcement of sections 85301 through 85304 render those sections legally nonexistent and hence not susceptible to judicial reformation. Our sovereign duty as a state court of last resort (see Scott v.

Bank One Trust Co., N.A., supra, 577 N.E.2d 1077, 1080), consistent with principles of federalism and comity, requires that we not automatically accept the federal court’s ruling on this important state law issue, but consider the reformation question afresh ourselves and reach a different conclusion if state law leads us to that result. For these reasons we issued an order to show cause in this matter, and now proceed to address the issue presented therein, namely, whether we may, and if so, should reform and order respondent to enforce sections 85301(a), 85302, 85303(

a) and (b), and the inter-candidate transfer ban of

section 85304. IV. The Authority of a Court to Reform a Statute to Preserve its Constitutionality Interveners and amicus curiae on behalf of respondent assert this court lacks authority to reform statutes, and that if we were to claim such authority, we would step out of legitimate judicial bounds and improperly invade the Legislature’s domain. They rely on numerous cases such as Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 187 [185 Cal.Rptr. 260, 649 P.2d 902] and Blair v.

Pitchess (1971) 5 Cal.3d 258, 282 [96 Cal.Rptr. 42, 486 P.2d 1242, 45 A.L.R.3d 1206]—decisions in which we broadly stated we may not rewrite a statute even to preserve its constitutionality. As we shall explain, those cases, with one antique and unpersuasive exception, are all distinguishable. Moreover, as we shall explain directly below, numerous decisions of the United States Supreme Court and lower federal courts and sister states, and numerous decisions of this court, amply support the propriety of judicial reformation—including “rewriting”—of statutes to preserve constitutionality when (

i) doing so closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred such a reformed version of the statute over the invalid and unenforceable statute. Because much of the jurisprudence of our own cases rests on and flows from decisions of the United States Supreme Court addressing judicial authority to reform statutes to preserve them against constitutional infirmity, we will first survey in some detail decisions of the high court, and to a lesser extent, lower federal and state courts. (Post, pt. IV.

A.) Thereafter, we will review California cases on that question (post, pt. IV. B.), and finally, as noted, we will consider cases in which we have disclaimed such authority (post, pt. IV. C.). A. Reformation of enactments by the United States Supreme Court and other courts 1. The jurisprudential!constitutional foundation of a court’s power to reform a statute to preserve its constitutionality: Justice Harlan’s concurring opinion in Welsh v. United States Modem authority for the judicial power of reformation to preserve constitutionality may be traced to the concurring opinion of Justice John Harlan in Welsh v.

United States (1970) 398 U.S. 333, 344-367 [26 L.Ed.2d 308, 321-334, 90 S.Ct. 1792] (Welsh.).

In Welsh, the high court addressed Congress’s conscientious objector statute, which applied to objectors who, “ ‘by reason of religious training and belief,’ ” were opposed to war. (398 U.S. at p. 336 [26 L.Ed.2d at p. 317].) The statute specifically excluded from its coverage those whose objection to induction arose from “ ‘essentially political, sociological, or philosophical views or merely a personal moral code.’ ” (Ibid.) Despite substantial evidence that petitioner Welsh fell within the excluded class (id. at pp. 341-342 [26 L.Ed.2d at pp. 319-320]), the plurality opinion nevertheless concluded he was covered by the statute (id. at p. 340 [26 L.Ed.2d at pp. 318-319]) and reversed his conviction for refusing induction. (Id. at pp. 343-344 [26 L.Ed.2d at pp. 320-321].) Justice Harlan concurred separately to disavow the plurality’s reasoning.

He asserted the plurality’s judgment effectively eliminated the statute’s exclusion from protection for those with nonreligious beliefs, but he nevertheless concurred in that result, “not as a matter of statutory construction,” but on the ground that under the circumstances it was appropriate for the court to judicially reform the statute. (Welsh, supra, 398 U.S. 333, 345 [26 L.Ed.2d 308, 321-322] (conc. opn. of Harlan, J.).) After explaining that Congress intended to exclude from the statute those, like Welsh, whose beliefs were not based on religion (id. at pp. 346-354 [26 L.Ed.2d at pp. 322-327]), Justice Harlan wrote: “If an important congressional policy [i.e., the conscientious objector policy] is to be perpetuated by recasting unconstitutional legislation, as the prevailing opinion has done here, the analytically sound approach is to accept responsibility for this decision.

Its justification cannot be by resort to legislative intent, as that term is usually employed, but by a different kind of legislative intent, namely the presumed grant of power to the courts to decide whether it more nearly accords with Congress’ wishes to eliminate the policy altogether or extend it in order to render what Congress plainly did intend, constitutional.” (Welsh, supra, 398 U.S. at pp. 355-356 [26 L.Ed.2d at pp. 327-328] (conc. opn. of Harlan, J.), italics added.) Justice Harlan determined that, properly construed, the statute ran afoul of the First Amendment’s establishment clause. (Welsh, supra, 398 U.S. 333, 356-361 [26 L.Ed.2d 308, 327-331] (conc. opn. of Harlan, J.).) He then addressed the question of relief (id. at p. 361 et seq. [26 L.Ed.2d at pp. 330-338].), and concluded that petitioner’s conviction for failure to submit to induction in the Armed Forces had to be reversed.

He explained: “Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion.” (398 U.S. at p. 361 [26 L.Ed.2d at p. 331].) Justice Harlan reasoned that because the statute “created a religious benefit not accorded to petitioner, it is clear to me that his conviction must be reversed under the Establishment Clause of the First Amendment unless Welsh is to go remediless.” (Welsh, supra, 398 U.S. 333, 362 [26 L.Ed.2d 308, 331] (conc. opn. of Harlan, J.).) He maintained that this result, “while tantamount to extending the [conscientious objector] statute, is not only the one mandated by the Constitution in this case but also the approach I would take had this question been presented in an action for a declaratory judgment or ‘an action in equity where the enforcement of a statute awaits the final determination of the court as to validity and scope.’ [Citation.] While the necessary remedial operation, extension, is more analogous to a graft than amputation, I think the boundaries of permissible choice may properly be considered fixed by the legislative pronouncement on severability.” (Id. at pp. 363-364 [26 L.Ed.2d at p. 332].) Justice Harlan then quoted the statute’s severability clause, and asserted: “In exercising the broad discretion conferred by a severability clause it is, of course, necessary to measure the intensity of commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation.” (Welsh, supra, 398 U.S. 333, 365 [26 L.Ed.2d 308, 333] (conc. opn. of Harlan, J.).) He concluded that the policy of exempting conscientious objectors from induction is “one of longstanding tradition in this country” (ibid.), and hence “there is a compelling reason for a court to hazard the necessary statutory repairs if they can be made within the administrative framework of the statute and without impairing other legislative goals, even though they entail, not simply eliminating an offending section, but rather building upon it.” (Id. at p. 366 [26 L.Ed.2d at p. 334], fn. omitted.) Justice Harlan concluded: “Thus I am prepared to accept the prevailing opinion’s conscientious objector test, not as a reflection of congressional statutory intent but as a patchwork of judicial making that cures the defect of underinclusion . . . .” (Id. at pp. 366-367 [26 L.Ed.2d at p. 334].) As explained below, even before Welsh, supra, and more frequently since that decision, the high court has followed Justice Harlan’s remedial approach in order to preserve the constitutionality of statutes, and in the process it has effectively rewritten various federal and some state statutes.

We outline below three general categories of cases in which reformation has occurred: (

i) cases concerning procedural safeguards required by the First Amendment and/or principles of procedural due process; (ii) cases concerning classifications underinclusive under the equal protection cause; and (iii) cases concerning otherwise vague or overbroad criminal statutes. 2. Reformation of statutes to avoid First Amendment and procedural due process problems Thirty-Seven Photographs, supra, 402 U.S. 363, was a proceeding under a federal statute (19 U.S.C. § 1305(a)) providing for the forfeiture of obscene materials imported from a foreign country.

The claimant, an importer who intended to publish the photographs in a book, asserted the forfeiture statute was unconstitutional under the First Amendment because it contained no adequate procedural safeguard to ensure prompt judicial review of a customs official’s decision to seize allegedly obscene property and because Congress may not bar importation of obscene material.

The first issue was resolved in an opinion by Justice White, who noted that the court had previously invalidated, as violations of the procedural due process guarantee, three similar state, local, and federal laws that likewise failed to provide for prompt judicial review of “administrative censorship” actions. (Freedman v. Maryland (1965) 380 U.S. 51 [13 L.Ed.2d 649, 85 S.Ct. 734]; Teitel Film Corp. v. Cusack (1968) 390 U.S. 139, 141 [19 L.Ed.2d 966, 968-969, 88 S.Ct. 754]; Blount v.

Rizzi (1971) 400 U.S. 410 [27 L.Ed.2d 498, 91 S.Ct. 423].) The Thirty-Seven Photographs court acknowledged that it had declined to “rewrite” the statutes involved in those cases (Thirty-Seven Photographs, supra, 402 U.S. at p. 369 [28 L.Ed.2d at pp. 829-830], italics added), but explained that rewriting was impossible because the first two cases involved state enactments, “and we lack jurisdiction authoritatively to construe state legislation.” (Ibid.) The statute in the third case could not be reformed, the court explained, because doing so “would have required its complete rewriting in a manner inconsistent with the expressed intentions of some of its authors.” (Ibid.) Justice White explained that “[n]o such obstacles confront us in construing § 1305(a).

In fact, the reading into the

section of the time limits required by Freedman is fully consistent with its legislative purpose.” (Thirty-Seven Photographs, supra, 402 U.S. at p. 370 [28 L.Ed.2d at pp. 830-831].) The court recited legislative history revealing Congress’ intent to require “immediate” review of confiscated material by a prosecuting attorney, and a “prompt” final disposition of the matter by a court. (Id., at pp. 370-371 [28 L.Ed.2d at p. 830].) The court concluded that “Congress’ sole omission was its failure to specify exact time limits within which resort to the courts must be had and judicial proceedings be completed.” (402 U.S. at p. 371 [28 L.Ed.2d at p. 831].) After reviewing lower court cases involving substantial delays in the commencement and completion of judicial proceedings (Thirty-Seven Photographs, supra, 402 U.S. at pp. 371-372 [28 L.Ed.2d at pp. 381-382]), the court announced that “fidelity to Congress’ purpose dictates that we read explicit time limits into the section.

The only alternative would be to hold § 1305(

a) unconstitutional in its entirety, but Congress has explicitly directed that the

section not be invalidated in its entirety merely because its application to some persons be adjudged unlawful.” (402 U.S. at p. 372 [28 L.Ed.2d at pp. 831-832].) The court noted that reformation of the statute would not “require us to decide issues of policy appropriately left to Congress” because Congress had “already set its course in favor of promptness and we possess as much expertise as Congress in determining the sole remaining question—that of the speed with which prosecutorial and judicial institutions can, as a practical matter, be expected to function in adjudicating § 1305(

a) matters. We accordingly see no reason for declining to specify the time limits which must be incorporated into § 1305(a)—a specification that is fully consistent with congressional purpose and that will obviate the constitutional objections raised by claimant. Indeed, we conclude that the legislative history of the

section and the policy of giving legislation a saving construction in order to avoid . . . constitutional questions require that we undertake this task of statutory construction.” (402 U.S. at pp. 372-373 [28 L.Ed.2d at p. 832].) The court observed that in many of the lower court cases the “Government in fact instituted forfeiture proceedings within 14 days of the date of seizure of the allegedly obscene goods, [citations]; and judicial proceedings were completed within 60 days of their commencement. [Citations.]” (Thirty-Seven Photographs, supra, 402 U.S. at p. 373 [28 L.Ed.2d at p. 832].) The court took this as evidence that those precise time limits would impose no undue hardship on the government or the lower federal courts, and that a “delay of as much as 74 days” was reasonable for “importers engaged in the lengthy process of bringing goods into this country from abroad.” (Ibid.) The court announced: “Accordingly, we construe § 1305(

a) to require intervals of no more than 14 days from seizure of the goods to the institution of judicial proceedings for their forfeiture and no longer than 60 days from the filing of the action to the final decision in the district court.” (402 U.S. at pp. 373-374 [28 L.Ed.2d at p. 832].) The court then applied its reformed “construction” of the statute to the facts of the case, and upheld the seizure. (Id. at pp. 374-375 [28 L.Ed.2d at pp. 832-833].) Justice Harlan, who less than a year earlier articulated his view of permissible judicial reformation of underinclusive statutes in his concurring opinion in Welsh, supra, 398 U.S. 333, 361 et seq. [26 L.Ed.2d 308, 338], concurred separately.

He endorsed Justice White’s analysis, and stated his agreement “that this statutory scheme may and should be construed” as set out in the court’s opinion. (Thirty-Seven Photographs, supra, 402 U.S. 333, 377 [28 L.Ed.2d 822, 834-835] (conc. opn. of Harlan, J.); accord, id. at p. 378 [28 L.Ed.2d at p. 835] (conc. opn. of Stewart, J.).) Lower federal circuit courts and state courts have followed Thirty-Seven Photographs, supra, 402 U.S. 333, and have extended its reformation approach beyond the context of First Amendment safeguards, to impose time restraints and other conditions mandated by the federal or state Constitutions. (See Lee v.

Thornton (2d Cir. 1976) 538 F.2d 27 [reforming federal statute governing forfeiture of vehicles seized as security at the border, and providing precise deadlines omitted by statute]; United States v. Monsanto (2d Cir. 1991) 924 F.2d 1186 [reforming federal forfeiture statute]; Department of Law Enf. v. Real Property (Fla. 1991) 588 So.2d 957 [reading into state forfeiture statute numerous detailed due process requirements needed to render the statute constitutional]; State ex rel. Berger v.

McCarthy (1976) 113 Ariz. 161 [548 P.2d 1158] [reforming state forfeiture statute to avoid infirmity by requiring law enforcement officials file notice of intent to institute forfeiture proceedings within 20 days after seizing vehicle used to unlawfully transport drugs]; see also Allen v. State, Human Rights Com’n (1984) 174 W.Va. 139 [324 S.E.2d 99] [reading into statute mandatory duty of Human Rights Commission to hold hearing within 180 days from date of filing of complaint]; State v.

Book-Cellar, Inc. (1984) 139 Ariz. 525 [679 P.2d 548] [reforming state “red light” nuisance abatement statute by reading into it requirement that court determine within 60 days whether to make permanent a preliminary injunction].) 3.

Judicial reformation of statutes underinclusive under the equal protection clause Even before Justice Harlan’s concurring opinion in Welsh, supra, 398 U.S. 333, 361 et seq. [26 L.Ed.2d 308, 330-338], the high court tacitly followed a similar remedial approach in a number of cases involving underinclusive or otherwise unconstitutional classifications in which the court rendered judgments that effectively, albeit implicitly, extended benefits statutes to improperly excluded groups.

After Justice Harlan’s concurring opinion in Welsh, supra, 398 U.S. 333, 361 [26 L.Ed.2d 308, 330-331], and the court’s opinion in Thirty-Seven Photographs, supra, 402 U.S. 333, the high court began a series of equal protection cases in which it tacitly followed Justice Harlan’s remedial approach in order to preserve the constitutionality of various benefits statutes. In the process it effectively, albeit not always candidly, rewrote—by elimination and by addition of words—various federal and some state statutes. In Graham v.

Richardson (1971) 403 U.S. 365 [29 L.Ed.2d 534, 91 S.Ct. 1848], the court affirmed federal district court judgments extending to resident aliens statutory benefits established by state public assistance programs. The effect of the court’s ruling was to rewrite the statutory classification of beneficiaries to include a group originally excluded. In Weber v.

Aetna Casualty & Surety Co. (1972) 406 U.S. 164 [31 L.Ed.2d 768, 92 S.Ct. 1400] (Weber), in which a similar constitutional problem was presented in a different procedural posture, the court reversed a state court judgment refusing to extend to dependent children “bom out of wedlock” equal entitlement to benefits from a state workers’ compensation scheme. The effect of the court’s ruling in Weber was to affirm the general propriety of judicial extension of statutes, and to force the state court to consider whether to extend the statute to include the excluded class.

Thereafter, the court continued to affirm judgments extending statutes, and to reverse judgments refusing to do so, in numerous cases. Subsequently, as the lower courts began to order extension of otherwise underinclusive statutes, the high court increasingly entered judgments affirming such judicial actions. In Weinberger v. Wiesenfeld (1975) 420 U.S. 636 [43 L.Ed.2d 514, 95 S.Ct. 1225], the court affirmed a district court judgment extending to all “parents” a

section of the Social Security Act that, as enacted, granted benefits only to “mothers.” In Califano v. Goldfarb (1977) 430 U.S. 199 [51 L.Ed.2d 270, 97 S.Ct. 1021], the court affirmed a district court judgment extending social security benefits to widowers on the same basis as widows. (See generally, Ginsburg, Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation (1979) 23 Clev. St. L.Rev. 301, 310-312 (Ginsburg).) Then, in Califano v.

Westcott (1979) 443 U.S. 76 [61 L.Ed.2d 382, 99 S.Ct. 2655] (Westcott), the high court expressly adopted the approach set out in Justice Harlan’s concurring opinion in Welsh, supra, 398 U.S. 333, 361 et seq. [26 L.Ed.2d 308, 330-338]. (Westcott, supra, 443 U.S. at pp. 89-90 [61 L.Ed.2d at pp. 393-394] (maj. opn.); id. at p. 94 [61 L.Ed.2d at pp. 396-397] (conc. & dis. opn. of Powell, J.).) The court’s opinion in Westcott affirmed a district court judgment extending benefits under a public assistance program to children whose mothers’ unemployment deprived them of parental support.

The court cited many of the decisions noted directly above (Westcott, supra, 443 U.S. at pp. 89-90 [61 L.Ed.2d at pp. 393-394]), and then stated its explicit approval of what the court had been doing implicitly for the prior decade.

It observed that “[t]he District Court ordered extension rather than invalidation by way of remedy here, and equitable considerations surely support its choice.” (Id. at p. 90 [61 L.Ed.2d at p. 394].) The court then unanimously confirmed the authority of federal courts to order extension— i.e., reformation—of statutes otherwise unconstitutional under the equal protection clause. (Id. at p. 91 [61 L.Ed.2d at pp. 394-395].) The high court subsequently affirmed and applied its judicial extension doctrine in Wengler v. Druggists Mutual Ins. Co., supra, 446 U.S. 142.

There the court found a state benefits statute that established a presumption of dependence for widows but not widowers invalid under the equal protection clause. Addressing the question of remedy—i.e., “extending the presumption of dependence to widowers or . . . eliminating it for widows” (id. at p. 152 [64 L.Ed.2d at p. 116])—the high court deferred to the state court.

It reasoned that “[b]ecause state legislation is at issue, and because a remedial outcome consonant with the state legislature’s overall purpose is preferable, we believe that state judges are better positioned to choose an appropriate method of remedying the constitutional violation.” (Id. at pp. 152-153 [64 L.Ed.2d at pp. 116-117]; accord, Orr v. Orr, supra, 440 U.S. 268, 283-284 [59 L.Ed.2d 306, 321-322] [remanding for state court to remedy unconstitutional classification imposing alimony obligations on men only]; Stanton v.

Stanton, supra, 421 U.S. 7, 17-18 [433 L.Ed.2d 688, 696-697] [remanding for state court to remedy unconstitutional classification imposing parental support obligation for males up to age 21, and females up to age 18].) Thereafter, the high court expressly reaffirmed the propriety of the judicial extension remedy. (Heckler v.

Matthews (1984) 465 U.S. 728 [79 L.Ed.2d 646, 104 S.Ct. 1387].) The court stated in its unanimous opinion: “[W]e have noted that a court sustaining such a claim faces ‘two remedial alternatives: [it] may either declare [the statute] a nullity and order that its benefits not be extended to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion.’ Welsh v. United States, [supra,] 398 U.S. 333, 361 [26 L.Ed.2d 308, 330-331] . . . (Harlan, J., concurring in result).” (Heckler v.

Matthews, supra, 465 U.S. at p. 738 [79 L.Ed.2d at p. 656].) Immediately thereafter, the court explained: “Although the choice between ‘extension’ and ‘nullification’ is within the ‘constitutional competence of a federal district court,’ Califano v.

Westcott, [supra,] 443 U.S., at 91 [61 L.Ed.2d at pp. 394-395], and ordinarily ‘extension, rather than nullification, is the proper course,’ id., at 89 [61 L.Ed.2d at p. 393], the court should not, of course, ‘use its remedial powers to circumvent the intent of the legislature,’ id., at 94 [61 L.Ed.2d at pp. 396-397] (opinion of Powell, J.), and should therefore ‘measure the intensity of commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation.’ Welsh v.

United States, 398 U.S. at 365 [26 L.Ed.2d at p. 333] (Harlan, J., concurring in result). See also Califano v. Westcott, supra, [443 U.S.] at 90. . . .” (Heckler v. Matthews, supra, 465 U.S. at p. 739, fn. 5 [79 L.Ed.2d at p. 656].) Most recently, in Davis v. Michigan Dept, of Treasury, supra, 489 U.S. 803 (Davis), a tax classification case, the court again endorsed Justice Harlan’s concurring opinion in Welsh, supra, 398 U.S. 333, 361 [26 L.Ed.2d 308, 330], and the cases discussed above.

The court explained it was “not in the best position to ascertain the appropriate remedy” (Davis, supra, 489 U.S. at p. 817 [103 L.Ed.2d at p. 906]) because doing so raised “a question of state law within the special expertise of the [state] courts. [Citation.] It follows that the [state] courts are in the best position to determine how to comply with the mandate of equal treatment.” (Id., at p. 818 [103 L.Ed.2d at p. 907],) In response to the high court’s practice of deferring to state courts to select extension or invalidation of underinclusive state statutes, our sister state courts have, with only one remarkable exception (ante, fn. 25), regularly followed the principles articulated by Justice Harlan in Welsh, supra, 398 U.S. 333 361 et seq. [26 L.Ed.2d 308, 330-338], and have accepted the propriety of judicial extension or “repair” of statutes when, inter alia, doing so is consistent with legislative intent.

For example, when faced with otherwise unconstitutional alimony statutes, numerous courts have extended to men a statutory right of alimony granted to women only. Likewise, many courts faced with otherwise unconstitutional workers’ compensation statutes have extended to widowers the same statutory conclusive presumption of dependency and entitlement to workers’ compensation death benefits granted to widows only. In numerous additional cases concerning various other statutory schemes courts have extended or otherwise “repaired” statutes in order to avoid invalidity under equal protection principles.

Courts have similarly extended the reach of underinclusive criminal statutes in order to avoid invalidity under equal protection principles. Finally, at least one state court has ventured even further to preserve a statute otherwise invalid under equal protection principles. In Insurance Co. of North America v. Russell (1980) 246 Ga. 269 [271 S.E.2d 178], the Georgia high court determined the legislature would prefer merger and substantial reformation of two constitutionally suspect provisions, rather than outright elimination of one provision and extension of the other. 4.

Judicial reformation of otherwise vague or overbroad criminal statutes Finally, the high court has endorsed the propriety of judicial reformation of statutes in the context of otherwise vague or overbroad criminal statutes— namely, criminal obscenity statutes—and has encouraged state courts to do so as well. In Miller v.

California (1973) 413 U.S. 15 [37 L.Ed.2d 419, 93 S.Ct. 2607] (Miller), the high court confirmed that “obscene” materials are not protected by the First Amendment, but limited the scope of nonprotected materials to those that, inter alia, “portray sexual conduct in a patently offensive way.” (Id. at p. 24 [37 L.Ed.2d at pp. 430-431].) The court required that, in order to be regulated, such conduct be “specifically defined by the applicable state law, as written or authoritatively construed.” (Ibid., fn. omitted.) Thereafter the court gave “a few plain examples of what a state statute could define for regulation” under its standard: “(

a) Patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated[, and] [1 (

b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” (Id. at p. 25 [37 L.Ed.2d at p. 431].) Justice Brennan, dissenting in a companion case (Paris Adult Theater I v. Slaton (1973) 413 U.S. 49 [37 L.Ed.2d 446, 93 S.Ct. 2628]), asserted the court’s Miller standard would “invalidate virtually every state law relating to the suppression of obscenity” (id. at p. 95, fn. 13 [37 L.Ed.2d at p. 480] (dis. opn. of Brennan, J.).) In response, the Miller court stated: “We do not hold . . . that all States . . . must now enact new obscenity statutes.

Other existing state statutes, as construed heretofore or hereafter, may well be adequate. See United States v. 12 200-Ft. Reels of Film [(1973) 413 U.S. 123,] at [p.] 130 n. 7 [37 L.Ed.2d 500, 507].” (Miller, supra, 413 U.S. at p. 24, fn. 6 [37 L.Ed.2d at p. 430].) In the cited footnote 7 of United States v. 12 200-Ft. Reels of Film (1973) 413 U.S. 123, 130 [37 L.Ed.2d 500, 507, 93 S.Ct. 2665] (12 200-Ft.

Reels of Film), the high court stated: “[W]hile we must leave to state courts the construction of state legislation, we do have a duty to authoritatively construe federal statutes where ‘ “a serious doubt of constitutionality is raised” ’ and ‘ “a construction of the statute is fairly possible by which the question may be avoided.” ’ United States v. Thirty-Seven Photographs, 402 U.S. 363, 369 (1971) [28 L.Ed.2d 822, 829-830, 91 S.Ct. 1400], (opinion of White, J.) ....

If and when such a ‘serious doubt’ is raised as to the vagueness of the words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’ ‘indecent,’ or ‘immoral’ as used to describe regulated material in 19 U. S. C. § 1305(

a) and 18 U. S. C. § 1462, ... we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard core’ sexual conduct given as examples in Miller v. California, [supra, 413 U.S.] at [page] 25 [37 L.Ed.2d at page 431]. See United States v. Thirty-Seven Photographs, supra, [402 U.S.] at [pages] 369-374 [28 L.Ed.2d at pages 829-835 (opinion of White, J.). . . .” Subsequently, citing footnote 7 of 12 200-Ft.

Reels of Film, supra, 413 U.S. 123, 130 [37 L.Ed.2d 500, 507], and Thirty-Seven Photographs, supra, 402 U.S. 363, 369 [28 L.Ed.2d 822, 829-830], the high court imposed its elaborate saving gloss—i.e., the specific “hard core” sexual conduct given as examples in Miller, supra, 413 U.S. at page 25 [37 L.Ed.2d at page 431]—to preserve against a vagueness challenge a federal statute prohibiting mailing of obscene materials. (Hamling v. United States (1974) 418 U.S. 87, 113-116 [41 L.Ed.2d 590, 618-620, 94 S.Ct. 2887].) Thereafter, most state courts (see, e.g., State v.

A Motion Picture Entitled “The Bet” (1976) 219 Kan. 64 [547 P.2d 760, 767], and cases cited), including our own (see Bloom v. Municipal Court (1976) 16 Cal.3d 71, 81 [127 Cal.Rptr. 317, 545 P.2d 229]) did the same, thereby grafting onto the various states’ statutes the detailed gloss articulated by the high court in Miller. In doing so the state courts determined—most often only by implication—that reformation was an appropriate exercise of judicial power, and that reformation of the statutes, rather than invalidating them, was most consistent with legislative intent. More recently, in Brockett v.

Spokane Arcades, Inc. (1985) 472 U.S. 491 [86 L.Ed.2d 394, 105 S.Ct. 2794] (Spokane Arcades), the high court approved a similar reformation of a state statute that employed the term “lust” in its definition of regulated obscene matter.

The United States Court of Appeals for the Ninth Circuit had invalidated the entire statute on the ground the term was unconstitutionally overbroad because it reached material that merely stimulated “normal sexual responses” in addition to material that was properly subject to regulation—i.e., that evincing a “morbid and shameful interest in sex.” (Id. at p. 495 [86 L.Ed.2d at p. 400], citing J-R Distributors, Inc. v. Eikenberry (9th Cir. 1984) 725 F.2d 482, 490-491.) The high court reversed.

The court first declined to construe the term “lust” as referring only to conduct that could properly be regulated. (Spokane Arcades, supra, All U.S. at pp. 500-501 [86 L.Ed.2d at pp. 403-404].) The court then noted that a “ ‘statute may be in

part constitutional and in part unconstitutional, and . . . if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected.’ ” (472 U.S. at p. 502 [86 L.Ed.2d at p. 405].) Cautioning that “a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it,” (ibid.) the court concluded the statute could be saved through a combination of severance and tacit insertion of limiting language. “Unless there are countervailing considerations, the [state] law should have been invalidated only insofar as the word ‘lust’ is to be understood as reaching protected materials.” (Id. at p. 504 [86 L.Ed.2d at p. 406], italics added.) The court observed that state law disfavored invalidating the entire statute and favored severance (id. at p. 506 [86 L.Ed.2d at pp. 407-408]), and surmised that the state legislature would prefer a statute that was so severed and limited by a definition of “lust” that excludes material that merely stimulates “normal sexual responses.” Accordingly, it reversed the judgment invalidating the statute. (Id. at p. 507 [86 L.Ed.2d at p. 408].) Although all decisions in which courts preserve enactments by severance are to some extent examples of judicial reformation, the significance of Spokane Arcades, supra, 472 U.S. 491, lies in the type of severance it employed.

The court severed from the statute any meaning of “lust” that would include material that merely stimulates “normal sexual responses.” In other words, the court implicitly introduced into the statute words of limitation—confining the reach of the otherwise overbroad term “lust” to cover only material “whose predominant appeal is to a ‘shameful or morbid interest’ ” in sex (id. at p. 498 [86 L.Ed.2d at p. 402])—in order to uphold the statute’s validity. (See also United States v.

Treasury Employees (1995) 513 U.S. _, _ [130 L.Ed.2d 964, 986-988, 115 S.Ct. 1003] (maj. opn. of Stevens, J.); id. at p--[130 L.Ed.2d at pp. 992-994] (conc. & dis. opn. of O’Connor, J.); id. at p. _ [130 L.Ed.2d at pp. 1002-1003] (dis. opn. of Rehnquist, C. J.) [all recognizing authority of court to “rewrite” statute to preserve constitutionality].) B.

Reformation of statutes by California courts Our own cases reveal that, consistently with Welsh, supra, and its numerous high court predecessors and progeny, it is appropriate in some situations for courts to reform—i.e., “rewrite”—enactments in order to avoid constitutional infirmity, when doing so “is more consistent with legislative intent than the result that would attend outright invalidation.” (Arp v. Workers’ Comp.

Appeals Bd. (1977) 19 Cal.3d 395, 407-408 [138 Cal.Rptr. 293, 563 P.2d 849] (Arp).) As explained below, like the high court, we have reformed statutes to preserve their constitutionality in cases concerning classifications otherwise invalid under the equal protection clause, and in cases involving criminal statutes otherwise unconstitutionally vague or overbroad.

In addition, our decisions have reformed statutes to confer necessary procedural due process protections, to avoid classifications impermissible under the First Amendment, and to avoid nullification under the judicial powers provision of our own Constitution. 1. Guiding principles: the Arp case Although Arp, supra, 19 Cal.3d 395, was a case in which we ultimately determined not to reform a constitutionally infirm statute, that decision both confirms the propriety of such a judicial role in appropriate cases, and provides guidance on the reformation question posed here.

In Arp, supra, a unanimous opinion by Justice Richardson, we considered a widower’s challenge to a

section of the Labor Code governing workers’ compensation benefits. Former Labor Code

section 3501, subdivision (a), provided that a widow was conclusively presumed to be totally dependent on her deceased husband, but created no such presumption for a widower. Instead, under the statutory scheme, a widower was forced to establish the fact and extent of dependency on his deceased wife. Following high court decisions cited above (e.g., Frontiero v. Richardson, supra, 411 U.S. 677; Weinberger v. Wiesenfeld, supra, 420 U.S. 636; Califano v.

Goldfarb, supra, 430 U.S. 199), we held the statute infirm under the equal protection clauses of the state and federal Constitutions. (Arp, supra, 19 Cal.3d at p. 407.) We then addressed “the question of remedy.

Petitioner urges upon us the course adopted in Goldfarb, Wiesenfeld and Frontiero: extension of statutory benefits to males and females alike, without regard to actual dependency. [Citation.] [f] Although courts do not lack the power to remedy a constitutional defect by literally rewriting statutory language, it is a comparatively drastic alternative, to be invoked sparingly, and only when the result achieved by such a course is more consistent with legislative intent than the result that would attend outright invalidation. [Citations.]” (Arp, supra, 19 Cal.3d at pp. 407-408, italics added.) We noted that in Weinberger v.

Wiesenfeld, supra, 420 U.S. 636, the high court “in effect held that substitution of the word ‘parent’ for the word ‘mother’ was consistent with Congressional intent to subsidize parental care for minor children” (Arp, supra, 19 Cal.3d at p. 408), and that the similar reformation in Califano v.

Goldfarb, supra, 430 U.S. 199, was also consistent with Congress’s intent. (19 Cal.3d at p. 408.) We concluded, however, that “[o]ur own case is somewhat different,” in that there was “clear, if antique” evidence that the Legislature “did not want widowers to receive compensation in excess of their actual, demonstrable financial loss: it repealed the original limited presumption affording surviving husbands total dependency benefits on a showing of only partial dependency. [Citations.]” (19 Cal.3d at pp. 408-409, italics in original.) In addition, we observed that extension in such “benefits” cases posed a special problem that militated in favor of legislative reformation.

We observed that “[s]uch action would undoubtedly have some impact on workers’ compensation insurance rates, since the present rate structure presumably has been carefully calculated without reference to the additional risk of maximum payout for all cases of female fatalities . . .” (id. at p. 409) and that under those circumstances “legislative preference is uncertain” and hence “judicial caution is appropriate.” (Id. at p. 410.) In closing, we also noted that invalidation rather than extension would not substantially disrupt the overall workers’ compensation scheme, or impose “any unfair hardship to an employee’s survivors” (ibid.), because other valid parts of the scheme remained to protect those interests. (Ibid.) Arp, supra, 19 Cal.3d 395, thus stands for the proposition that courts possess the authority, in appropriate cases, “to remedy a constitutional defect by literally rewriting statutory language” when doing so is “more consistent with legislative intent than the result that would attend outright invalidation,” but that such judicial action is improper when the suggested reformation is inconsistent with the Legislature’s intent, or when that intent cannot be ascertained.

As explained below, both before and since Arp, supra, 19 Cal.3d 395, we have reformed statutes to remedy constitutional defects consistently with the principles that governed our resolution of Arp. 2. Reformation of statutes to avoid vagueness, overbreadth, or procedural due process problems In a substantial number of cases we have imposed saving constructions on otherwise unconstitutionally vague terms, thus preserving statutes while at the same time adding a crucial judicial gloss that, in practical effect, operates as a judicial reformation of the statute. As noted above, one such case was Bloom v.

Municipal Court, supra, 16 Cal.3d 71, 81, in which we—like most other state courts—added a substantial textual gloss to our “obscenity” statute (Pen. Code, § 311.2) in order to save it against a claim that it was void for vagueness.' After reviewing the high court decisions described above, including 12 200-Ft. Reels of Film, supra, 413 U.S. 123, and Thirty-Seven Photographs, supra, 402 U.S. 363, we held our Penal Code

section “is . . . limited to patently offensive representations or descriptions of the specific ‘hard core’ sexual conduct given as examples in Miller I[, supra, 415 U.S. at page 25 (37 L.Ed.2d at p. 431)], i.e., ‘ultimate sexual acts, normal or perverted, actual or simulated,’ and masturbation, excretory functions, and lewd exhibitions of the genitals.’ ” (Bloom, supra, 16 Cal.3d at p. 81.) Thereafter, in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256-257 [158 Cal.Rptr. 330, 599 P.2d 636], we concluded that Penal Code

section 647, subdivision (a) (disorderly conduct), was unconstitutionally vague. The statute made criminal one “ ‘[w]ho solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.’ ” (25 Cal.3d at pp. 243-244, italics omitted.) In order to preserve the statute, we revised its scope, “arriv[ing] at the following construction of

section 647, subdivision (a): The terms ‘lewd’ and ‘dissolute’ in this

section are synonymous, and refer to conduct which involves the touching of the genitals, buttocks or female breast for the purpose of sexual arousal, gratification, annoyance or offense, if the actor knows or should know of the presence of persons who may be offended by his conduct.

The statute prohibits such conduct only if it occurs in any public place or in any place open to the public or exposed to public view; it further prohibits the solicitation of such conduct to be performed in any public place or in any place open to the public or exposed to public view . . . .” (25 Cal.3d at pp. 256-257.) In numerous other cases we have similarly reformed partly overbroad or vague statutes—and in doing so imposed what amounts to a judicial reformation of the statutory terms. (See, e.g., City of Los Angeles v.

Belridge Oil Co.(1954) 42 Cal.2d 823, 832-833 [271 P.2d 5]; In re Kay (1970) 1 Cal.3d 930, 943 [83 Cal.Rptr. 686, 464 P.2d 142]; In re Bushman (1970) 1 Cal.3d 767, 773 [83 Cal.Rptr. 375, 463 P.2d 727]; Morrison v. State Board of Education (1969) 1 Cal.3d 214, 225, 232-233 [82 Cal.Rptr. 175, 461 P.2d 375], and cases cited; Barrows v. Municipal Court (1970) 1 Cal.3d 821, 827-828 [83 Cal.Rptr. 819, 464 P.2d 483]; In re Cox (1970) 3 Cal.3d 205, 223 [90 Cal.Rptr. 24, 474 P.2d 992] ; Braxton v. Municipal Court (1973) 10 Cal.3d 138, 151 et seq. [109 Cal.Rptr. 897, 514 P.2d 697]; Associated Home Builders etc., Inc. v.

City of Livermore (1976) 18 Cal.3d 582, 598-599 [135 Cal.Rptr. 41, 557 P.2d 473]; People v. Freeman (1988) 46 Cal.3d 419, 424 [250 Cal.Rptr. 598, 758 P.2d 1128].) In each of these cases we reformed the statutes because doing so was more in keeping with the discernible legislative will than striking them down. Apparently because neither petitioners nor intervener on their behalf discusses these cases, interveners and amicus curiae on behalf of respondent do not discuss them or challenge their applicability to the present litigation.

We assume that if pressed, they might attempt to distinguish them on the ground we were not forced in those cases to disregard language and to substitute reformed language; instead, we simply placed a saving “construction” on the statutory language, thereby constricting the reach of the statute. The distinction, in our view, suggests a difference of degree, not kind. In each of the cited vagueness and overbreadth cases we declined to give effect to the “plain words” meaning of the statutes, and instead reformed the statutes to in order to save and make them enforceable.

In practical effect, in all of these cases, we “rewrote” each statute in order to preserve its constitutionality. 3. Reformation of statutes to avoid violation of state constitutional prohibition In re Edgar M., supra, 14 Cal.3d 727 (Edgar M.), a unanimous opinion by Chief Justice Wright, illustrates the permissible limits of judicial reformation of a statute in order to conform it to constitutional principles. In Edgar M., we considered a constitutional challenge to Welfare and Institutions Code

section 558, which governed a juvenile’s application for rehearing after a referee’s decision declaring the minor a ward of the court and removing him from his home. The statute provided: “ ‘If all of the proceedings before the referee have been taken down by an official reporter, the judge of the juvenile court may, after reading the transcript of such proceedings, grant or deny such application. If proceedings before the referee have not been taken down by an official reporter, such application shall be granted as of right.

If an application for rehearing is not granted within 20 days following the date of its receipt, it shall be deemed denied.

However, the court, for good cause, may extend such period beyond 20 days, but not in any event beyond 45 days, following the date of receipt of the application, at which time the application for rehearing shall be deemed denied unless it is granted within such period.’ ” (14 Cal.3d at pp. 736-737, italics added.) Because the latter two sentences purported to give binding effect to a juvenile referee’s decision without requiring any action by a trial court, we concluded they violated constitutional restrictions on a referee’s powers.

Instead of invalidating the statute, however, we sought a “construction of the [statute] that will eliminate this invalid application and yet preserve the parts and applications of the [statute] which do not violate the constitutional provisions and which the Legislature would have intended to put into effect if it had foreseen the constitutional restriction.” (Edgar M., supra, 14 Cal.3d at p. 736.) We determined that we could best effectuate the Legislature’s intent “by altering the operative effect” of the statute’s language rather than striking the two offending sentences altogether: “To strike the last two sentences from the

section would remove the limits on the time during which an application for rehearing could be pending and awaiting action .... The

section would then read as it did in . . . 1961 .... However, the Legislature showed its dissatisfaction with this omission by introducing the sentences into the

section by amendments in 1963 [citations]. The salutary purpose of the amendments was to prevent indefinite prolongation of uncertainty concerning the status of a referee’s order as the order of a court.” (Edgar M., supra, 14 Cal.3d at p. 737.) Our opinion explained: “We believe that the legislative intent will be more fully effectuated within the constitutional restraint by altering the operative effect of these sentences rather than striking them altogether. The quoted portion of

section 558 provides that if the proceedings before the referee have not been taken down by an official reporter, an application for rehearing must be granted as a matter of right. If the proceedings have been taken down by a reporter but the judge does not... act on the application within the required period, the proceedings should be treated as a practical matter as if they had been unreported.

Thus we conclude that we can best harmonize the statutory purpose with the constitutional command by requiring that applications which would be ‘deemed denied’ under the section’s literal wording be instead granted as of right, thereby applying to unacted-upon applications based on reported proceedings the rule which the Legislature has laid down for applications based on unreported proceedings.” (Edgar M., supra, 14 Cal.3d at p. 737.) Clearly, in Edgar M., we substantially reformed —indeed, “rewrote”—two sentences of the statute in order to conform it to constitutional principles, and to effectuate, as closely as possible, the Legislature’s intent, which we gleaned from the statute and its history.

Amicus curiae on behalf of respondent attempts to dismiss Edgar M. as an aberration—“to say the least, an unusual case . . . [embodying a] ‘forced, strained, and unsatisfactory principle of statutory construction.’ ” (Quoting People v.

Belton (1979) 23 Cal.3d 516, 531 [153 Cal.Rptr. 195, 591 P.2d 485] (dis. opn. of Jefferson, J.).) Interveners on behalf of respondent, on the other hand, accept the analysis and result in Edgar M., supra, 14 Cal.3d 727, as being consistent with the Legislature’s intent, but attempt to distinguish the present case on the ground that “the electorate’s intent with regard to Proposition 73 is much harder to discern.” We agree with interveners’ implicit concession that Edgar M., supra, cannot be dismissed, as amicus curiae would suggest, as some kind of mutant decision, and that the dispositive inquiry in the present case centers on the electorate’s intent. 4.

Reformation of underinclusive enactments to avoid First Amendment problems In City and County of San Francisco v. Eller Outdoor Advertising (1987) 192 Cal.App.3d 643 [237 Cal.Rptr. 815] (Eller), the Court of Appeal considered the constitutionality of San Francisco’s ordinance regulating both commercial and noncommercial signs. The court found the ordinance constitutional in most part, but held one aspect of the measure, which set out exemptions from regulation, conflicted with the First Amendment. The suspect categories of exempted signs were contained in four subdivisions of

section 603 of the ordinance. Subdivision (

c) exempted “ ‘Temporary display posters, without independent structural support, in connection with political campaigns and with civic non-commercial health, safety, and welfare campaigns’ subdivision (

d) exempted “ ‘[temporary displays of a patriotic, religious, charitable or civic character’ subdivision (

f) exempted “ ‘Commemorative plaques’ and subdivision (

h) exempted “ ‘Religious symbols attached to buildings . . . .’” (Eller, supra, 192 Cal.App.3d at pp. 649-650, fn. 3.) Following decisions of the high court, the Court of Appeal concluded that by these exemptions the city had impermissibly attempted “ ‘in the area of noncommercial speech[,] to evaluate the strength of, or distinguish between, various communicative interests. [Citations.] With respect to noncommercial speech, the City may not choose the appropriate subjects for public discourse. . . .’” (Eller, supra, 192 Cal.App.3d at pp. 661-662, quoting Metro-media, Inc. v.

San Diego (1981) 453 U.S. 490, 514-515 [69 L.Ed.2d 800, 819-820, 101 S.Ct. 2882].) The Eller court concluded these exemption provisions were “incompatible with the First Amendment” under Metromedia, supra, 453 U.S. 490, and proceeded to determine “whether the defect we have noted requires invalidation of the entire ordinance or whether the offending provisions can be construed in such a way as to save its constitutionality.” (Eller, supra, 192 Cal.App.3d at pp. 662, 663.) The Eller court noted that in Metromedia, Inc. v.

City of San Diego, supra, 32 Cal.3d 180, 187-191, we declined to reform a similar local ordinance principally because the enactors’ intent to impose a

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